The overtures of President Trump on October 9, 2019, landed as music in the ears of many grizzly immigration lawyers who continue to suffer from combat fatigue Culture of almost never, On this day, the president published a double album, each of which was elaborately written liner notes:
The songs of TAFCAEA and IAGD, which resonate beautifully and evoke a reassuring sense of heart, make it clear that when determining and enforcing federal laws, all executive agencies involved:
- publish clear guidelines specifying the permissible and prohibited behavior of the regulated parties;
- Avoid cases of "unfair surprises" so that members of the public (the regulated community) are not overwhelmed by unforeseen changes in agency interpretation of the federal laws.
- allegedly binding Agency rules that have not been published in the US Federal Register (so-called sub-regulatory guidelines), put in an indexed and searchable area of the Agency's website (or the "rules" disappear); and
- will shortly announce rules of procedure for administrative inspections and will be held accountable to comply with published principles.
The media have paid little attention to TAFCAEA and IAGD with a few exceptions. See, for example,New Trump Orders: Leadership should be a shield, not a sword"By Susan E. Dudley and"Trump orders limit the influence of agency management on the industry"From a team of Bloomberg Law reporters.
However, these early commentaries did not shed any light on the foreseeable impact that the new orders will have on federal immigration bureaucracy. In happy reverie, I thought about how the various US immigration authorities would respond to these new executive limitations.
Do the federal immigration authorities have to sing in line with TAFCAEA and IAGD?
As I read the new executive orders more closely, I heard a discordant note that struck my soaring heart. The TAFCAEA contains in § 11 (d) (1) and the IAGD in § 7 (d) (1) exclusions in identical terms that appear to exclude any change in the numerous immigration authorities' practices that have been repeatedly condemned in this regard. eg Here. Here, and Here):
(Nothing) in that order. , , to all acts relating to foreign or military affairs or to a national security or homeland security function of the United States (except Procurement measures and Measures relating to the import or export of non-defense goods Articles and Services) (Emphasis added).
For heaven's sake, I thought, immigration inherently involves foreign affairs, as well as domestic and domestic security functions of the United States. For that reason, I feared that the State Security and Homeland Security Ministries would rush to claim that TAFCAEA and IAGD in no way hinder the standard operating procedures of the state and DHS if the interpretations change spontaneously, and thus routinely (and unfair) would surprise and surprise organizations applying for immigration aid with new and ever stricter eligibility criteria.
But then I noticed a phrase that, with the exception of the exclusion clauses, stated that TAFCAEA and IAGD would continue to apply for the import. , , from . , , Non-defense. , , What could be the import of non-defense services? A keyword search of the Immigration and Nationality Act (INA) has been quickly incorporated into two sections:
- INA §§ 214 (c) (1) and 218, which require that employers wishing to "introduce" a non-citizen into H, L, O and P employment categories should apply and obtain the approval of the Authority, before a consular officer can apply for a temporary work visa; and
- INA §§ 212 (a) and 278, which prohibit and punish any non-citizen wishing to "introduce" foreigners for prostitution or other immoral purposes.
It's hard to guess the unexplained reasons and meaning of the "import" exception, and I will not hesitate to speculate here. In fact, it seems clear that the INA also handles the import of services with the initiators. This suggests that TAFCAEA and IAGD should at least cover regulatory action in relation to several non-immigrant visa categories, including H-1B (skilled worker), H-2A (farm worker), H-2B (non-farm worker), H -3 (trainee), L- 1 (intra-corporate transfers), O-1 (persons with exceptional skills), P-1A (internationally recognized athletes), P-1B (members of an internationally recognized entertainment group), P-2 (performers or groups participating in a mutual exchange program and P-3 (artist or entertainer in a culturally unique program) .This is a lot of newly established litigation for my money.
It remains to be seen whether USCIS will extend the principle of importing services to other fixed-term visas based on petitions, such as the E-1 and E-2 (authorized dealers and investors), for process consistency reasons. E-3 (Australian Skilled Workers), Q-1 (Cultural Practitioners), R-1 (Religious Workers) and TN (North American Free Trade Agreement workers), and possibly also applications for immigration abroad.
What do TAFCAEA and IAGD need?
As litigation attorneys, the immigration lawyers welcome the new lyrical statements written by our president (all emphatically added):
- Rule of law requires transparency, , , , , No one should be subject to a civil enforcement action without prior public notice of a civil law enforcement measure or a judicial decision on the jurisdiction of the executing authority for a particular conduct and the legal standards applicable to such conduct, , , , The agencies grant the guarantees to the regulated parties described in this order, moreover, the courts have interpreted the clause on the orderly conduct of the fifth amendment to the Constitution impose. (TAFCAEA, § 1)
- Guidelines should not be used to impose new standards of conduct on persons outside the executive unless expressly permitted by law or expressly incorporated into a contract. When an agency takes an administrative enforcement action, it (or) decides , , , It must establish a violation of the law by applying laws or regulations. The Agency shall not treat non-compliance with a standard of conduct, which is solely stated in a guide, as a violation of applicable laws or regulations. If an agency determines, by means of a guide, that a law or regulation is legally applicable, that document can no longer. , , as articulating the agency's understanding of how a law or rule applies to specific circumstances. (TAFCAEA, § 3)
- When an agency takes an administrative enforcement action (or) makes a decision. , , Only behavioral standards that have been publicly disclosed in a way that does not cause unfair surprises may be used (ie a lack of reasonable security or reasonable warning, which requires an agency-managed legal standard) (TAFCAEA, §§ 2 and 4)
- (Agencies need to) treat guidelines as non-binding both in legislation and in practice (,). , , Taking into account the contributions of the public in formulating guides and providing guidance to the public, Agencies may impose legally binding requirements on the public only through regulations and on a case-by-case basis through decisions, and only according to an appropriate procedure, except as permitted by law. , , , (IAGD, § 1)
- Within 120 days of the date of this order Any authority conducting civilian administrative inspections shall publish rules of procedure for these inspections, if they do not already exist. After publication, an agency must conduct inspections of regulated parties in accordance with the rule, (TAFCAEA, § 7)
What impact will TAFCAEA and IAGD have on DHS, state and labor?
TAFCAEA and IAGD have not yet been listed on a clean board. On October 9, President Trump made the following clear:
The regulated parties must know in advance which rules the Federal Government will use to assess their actions. The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., Was enacted to provide that "administrative directives relating to the rights and obligations of individuals should be adopted in accordance with certain established procedures in order to avoid the inherently arbitrary nature of unpublished ad hoc provisions". Morton against Ruiz415 (1974), 199, 232. With the Freedom of Information Act, America's pioneering transparency law, the APA has been changed to further this goal. The revised Freedom of Information Act now generally requires agencies to publish in the Federal Register their generally applicable material rules, general guidelines and interpretations (5 USC) as formulated and adopted by the Agency 552 (a) (1) (D). The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with an unpublished rule or policy unless the person has in fact and timely knowledge of the provisions of the Rule or Directive (5 USC 552) (5). a) (1)).
Unfortunately departments and agencies. , , in the executive, these requirements have not always been met. In addition, some regulatory practices regarding enforcement actions and decisions undermine the APA's goals of promoting accountability and fairness.
(TAFCAEA, § 1)
It is too early to say how the federal immigration authorities will respond (and whether Regulated parties could be confronted with litigation by the APA if the reactions do not comply with the instructions of the President in TAFCAEA and IAGD. At a minimum, if the agencies do not take action, they should find that their upended interpretations and guides (which are almost never published in a single place, let alone as regulations) are dead letters.
Each of the agencies publishes online resources, mostly in different locations. USCIS publishes a Policy Manual, on edited public version of the Field Guide of his AdjudicatorAnd numerous political memoranda, The employment office published Data Sheets. Online Directories, and official announcements, The State Department publishes his Handbook on Foreign Affairs, on landing page for the Bureau of Consular Affairs and many of US US embassies and consulates publish procedures, interpretations, eligibility criteria and guidelines, such as those of the US Embassy (London). It also maintains an email inquiry service called LegalNet.com for legal questions on visa issues, but never published his report to consular officers (often with legal interpretations that exceed the otherwise applicable principle of consular non-verifiability).
The IAGD in § 3 would definitively end this practice:
Within 120 days of the date on which the Office of Administration and Budget. , , Upon publication of an Implementing Note under Section 6 of this Decision, any agency or agency component shall, where applicable, set up or manage, on its website, a single searchable, indexed database containing or referring to all guidance documents that have entered into force by that agency or component.
An even earlier result will be visible on February 6, 2020 unlawfully constituted unit known as Fraud Detection and National Security The Directorate (FDNS), the Department of Labor Department (WHD) and the United States Immigration and Customs Bureau (ICE), each carrying out "civilian administrative inspections", must publish their own rules on agency procedures involving these inspections regulate. , , and must conduct inspections of regulated parties in accordance with the rule. For example, on the arrival of this happy day, local FDNS visits will be made into H and L visas, WHD audits of H-1B compliance with the DOL regulations for work conditions applications, and ICE I-9 inspections and F-1 -Site visits finally carried out under transparent procedures.
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For an immigration lawyer, it's music.
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